May a court compel a defense attorney to breach her ethical duties to her client in a death penalty case? More precisely, when an inmate's counsel is asserting that a state's lethal injection procedure violates the Eighth Amendment's prohibition against "cruel and unusual" punishment, should she be required to suggest an alternative?

However you phrase it, this profound question has arisen in Missouri after a group of prisoners challenged the state's dubious lethal injection protocols, and the 8th U.S. Circuit Court of Appeals issued a January ruling denying them relief. Those prisoners have now asked the United States Supreme Court to accept their case for review, arguing that the 8th Circuit plainly misinterpreted the Supreme Court's 2008 ruling in Baze v. Rees.

The premise behind the ruling can be applied in a number of settings to create a wedge between lawyer and client.

The idea that judges would force defense attorneys to do the government's job of identifying viable lethal injection options has alarmed legal ethicists. Last week, for example, the folks at the Ethics Bureau at Yale Law School urged the justices to overturn the 8th Circuit's ruling because it "flies in the face" of a lawyer's obligations to her client. Neither the Sixth Amendment, the Eighth Amendment, nor the Supreme Court's ruling in Baze demand such a result, they argue.

At first look, this dispute seems highly focused upon a narrow strand of death penalty law—after all, the 8th Circuit's dubious interpretation of Baze is not (for now, anyway) binding in most states that still impose the death penalty today. But the premise behind the embattled 8th Circuit ruling—that the defense must assist the government in imposing a particular sentence—can be applied in a number of settings to create a wedge between lawyer and client.

The Ruling

The 8th Circuit's decision on January 24th, in a case styled In re Lombardi, is one of many rulings the court has recently had to issue as it seeks to bring order to the chaos that now exists over Missouri's execution methods. The reasons for this chaos are long and complicated, but the thing to know is that a federal trial judge gave defense attorneys permission to get basic information about the new (and largely untested) drugs that are to be used in upcoming executions, and the 8th Circuit overturned that ruling.

Attorneys didn't need to have access to that information because it was "not relevant to any claim" the defendants could make under the Eighth Amendment, the 8th Circuit held in Lombardi. Why? Because, the court concluded, any such constitutional claim would have to include an allegation by the defense "that the risk of harm arising from the State's current lethal-injection protocol is substantial when compared to known and available alternatives." According to the 8th Circuit, the reason the defense attorneys had no right to access the drug information was because they did not "allege that a different lethal-injection protocol, or a different method of execution (e.g., lethal gas, electrocution, or firing squad) is more humane."

The federal appeals court majority came to this conclusion by interpreting the Supreme Court's decision in Baze. Here is the link to the 8th Circuit's ruling, and here is the heart of its rationale:

Where, as here, there is no assertion that the State acts purposefully to inflict unnecessary pain in the execution process, the Supreme Court recognized only a limited right under the Eighth Amendment to require a State to change from one feasible method of execution to another. The controlling opinion of the Chief Justice in Baze provides that if a State refuses to adopt a readily available alternative method of execution that would significantly reduce a substantial risk of severe pain, then “a State’s refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth Amendment.” 553 U.S. at 52 (plurality opinion) (emphasis added in original).

In sum: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives.” Id. at 61 (emphasis added in original).

But the Supreme Court in Baze was not confronted with the situation the 8th Circuit confronted in the current Missouri case. In Baze, the justices looked at a Kentucky case in which two death row inmates challenged that state's lethal injection protocols—but in that case, they argued that there was at least one alternative procedure more likely to generate a "humane and constitutional" execution. A fractured court held that the two Kentucky prisoners could not successfully challenge the state's injections protocol merely by citing "a slightly or marginally safer alternative" that the state had chosen not to employ.

The Supreme Court cannot allow a rule that forces capital defense attorneys to become agents of the state.

Such an alternative, Chief Justice John Roberts wrote in his majority opinion in Baze, must be "feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain." What no justice ever claimed in Baze, however, was that it was the constitutional duty of the death row inmate to come up with an alternative method of execution as a condition of making an Eighth Amendment challenge. That duty is something the 8th Circuit majority in Lombardi invented from the penumbras they perceived as emanating from Baze so that they could protect Missouri from having to disclose information about its lethal drugs.

The Ethicists' Response

So there is a strong case for overturning Lombardi on straight constitutional grounds. It's an erroneous ruling that misstates Supreme Court precedent in a straightforward way, and does so in order to deprive a capital defendant of his right to learn basic information about the drugs a state wants to use against him. But the Lombardi decision also has generated a surprising and strong response from the legal ethics community because of the "lose-lose" choice it demands of the lawyer representing the death row inmate.

Last Thursday, in support of the efforts to get the justices in Washington to accept Lombardi for review, a group of legal ethicists at Yale filed their friend-of-the-court brief. Here is the link to the Yale brief, and here is the heart of the argument the ethicists present:

The Eighth Circuit’s interpretation of Baze – specifically, its suggestion that a lawyer must propose an alternative means by which his client is to be executed in order to meet the pleading standard – flies in the face of this professional requirement. It forces the lawyer to abandon the client’s set objective for the representation – and instead, to concede the constitutionality of another, untested method of execution – in spite of the fact that no lawyer should be required, in the face of a method of execution that the client asserts is unconstitutional, to advocate for an alternative.

As such, the Eighth Circuit’s interpretation puts lawyers representing death row inmates in a lose-lose situation when their clients have not conceded that there is any constitutional method of execution now that the method Missouri used in the past is no longer available.

The Yale brief continues:

The Eighth Circuit’s interpretation of Baze at issue here would place a lawyer under a severe and darkly ironic conflict: the principal goal of any lawyer representing a death row client is to prevent his client’s execution; yet the Eighth Circuit’s interpretation of the pleading rule would require the lawyer to actively advocate for a particular means of achieving his client’s death in the course of attempting to avert it.

Placed in such a position, no lawyer could effectively argue both for and against his client’s execution. Moreover, requiring him to argue in favor of it is decidedly unjust on its own terms, prohibiting him from “enforcing [his] client’s rights” – or pursuing his client’s wishes – “to the fullest extent….” (citation omitted by me).

And, finally, another compelling argument from Yale:

If the Court were to adopt the Eighth Circuit’s interpretation of Baze, requiring a lawyer to propose a specific alternative method of execution when pleading to the cruel and unusual nature of one method of execution, that requirement would force lawyers to violate their duties of competent representation. Proposing such an alternative requires detailed information that the defense lawyer necessarily lacks at the pleading stage and is unlikely to ever be able to acquire.

If a defense lawyer lacks the knowledge to plead his client’s case then he will necessarily breach his legally binding duty of competence. Missouri Rules of Prof’l Conduct R. 4-1.1 (2007). As such, the Eighth Circuit’s requirement would render it impossible for lawyers to competently plead to the cruel and unusual nature of the then-present method of execution.

This is what Lombardi is about. It's about a federal court depriving lawyers of the right to "detailed information" about the drugs that are to be used against their clients—information that would allow those lawyers to "competently" argue over whether those drugs (by being contaminated or diluted, for example) preclude an execution that is not cruel. The justices of the Roberts Court may not be especially sympathetic to the conclusions of a bunch of legal ethicists. But the issues raised by the Yale brief are legitimate and should not go unanswered.

"Two Unacceptable Alternatives"

Last week, after the Yale ethics brief was filed, I asked New York University School of Law professor Stephen Gillers, one of America's preeminent legal ethicists, to also take a look at the 8th Circuit's ruling in Lombardi. I wanted to know, in essence, if the Yale team had it right. The question I asked him, via email, was simple. "Does a federal appeals court ruling in a capital case force lawyers to breach ethics by requiring those lawyers to advance alternative means of execution?" Here is Professor Gillers's written response:

In Baze, the lawyers for the death row inmates chose to propose an alternative method of execution, which they argued would be less prone to risk of pain and suffering. This decision was a strategic one and would have required the client's consent. Baze held that the lawyers did not show that the alternative they elected to advance was better, or better enough for constitutional purposes.

Baze did not hold that lawyers challenging a method of execution as a violation of the 8th Amendment were required to offer an alternative . The 8th Circuit misread Baze to say otherwise. A defendant is free to challenge the state's chosen method as cruel and unusual without suggesting an alternative. For example, hanging is cruel and unusual. If a state prescribed execution by hanging, a defendant would be free to challenge the method on 8th Amendment grounds without conceding how the state may legally choose to kill him instead.

The 8th Circuit's holding in Lombardi is therefore wrong for two reasons, Professor Gillers told me:

First, it undermines the foundation of the attorney client relationship. To put it in the form of a rhetorical question, the answer to which should be obvious: Does it subvert the trust and confidence essential to the relationship between a lawyer and a client to require the lawyer to advocate to a court a legally permissible way to kill his or her client? Just in case the answer is not obvious, it is yes.

Second, the Circuit's decision also deprives the client of the right to challenge the method that the state itself chose as cruel -- absolutely cruel, without regard to other methods that might be less cruel. The state has the burden of devising a method of execution that is not cruel and unusual. The court has made the price of the defendant's wish to challenge the state's choice the making of a counteroffer -- another means of execution that the defendant would then be conceding is legal. The lawyer is forced to choose between two unacceptable alternatives.

Either the lawyer forgoes what may be a valid argument against the state's method of execution or, as the cost of making the argument, tells the court how the state might otherwise execute the client.

This ethicists are right. The decision to review this case shouldn't be a close call for the justices. They have to correct what the 8th Circuit has done. The Supreme Court cannot allow a rule that forces capital defense attorneys to become agents of the state—and consultants about which lethal injection procedures are better than others—to the detriment of their clients. The best answer here, naturally, is the simplest one. Make the injection process more transparent, and give attorneys access to the information they seek, so that they can challenge state action based upon facts and evidence and not merely by allegation.